Monday, April 14, 2014

I’ll cop to being a flasher. Not the trench-coat-and-a-smile
kind, but rather the kind who will “flash” my headlights to alert my fellow
motorists to the presence of nearby “bears.”

While I happen to think of it as common courtesy, the law
has different and wildly varying opinions from state to state or town to town. But
a couple of recent court cases could be paving the way for such actions to have
some of the highest protection afforded under law: First Amendment protection.

The most recent involves trucker Christopher Hill, of
Klamath Falls, Ore., who fought and won a case in which he was ticketed by the
Jackson County (Ore.) Sheriff’s Department for unlawfully using his headlights
to alert another trucker that Smokey was on the prowl.

Oregon law prohibits using high beams or flashing lights in
a manner that creates traffic hazards or blinds other drivers, but Hill argued
in court that his right to free expression was infringed upon and that police
were retaliating against him by citing him.

The judge in his case agreed with Hill’s assessment and
threw out the ticket in an April 9 ruling in Jackson County Court.

“The government certainly can, and should, enforce the
traffic laws for the safety of all drivers on the road,” Judge Joseph Charter
wrote in his ruling. “However, the government cannot enforce the traffic laws,
or any other laws, to punish drivers for their expressive conduct.”

A week earlier, a federal judge in my state of Missouri also
ruled in favor of a four-wheel driver who was ticketed for flashing motorists
to alert them to a speed trap in the town of Ellisville. The American Civil
Liberties Union filed a lawsuit on behalf of the driver, Michael Elli, on the grounds
that the citation impinged upon the driver’s right to free expression. The city
entered into a permanent injunction against the practice on April 2.

“Expressive conduct is protected whenever a particular
message is present and the likelihood is great that the message would be
understood by those who viewed it," Tony Rothert, legal director of the
ACLU of Missouri, said in a press release on the Missouri ACLU’s website. “Even
new drivers understand that an oncoming car with flashing headlights means they
should either slow down, turn on their headlights, or otherwise use caution.”

While these two cases are clearly wins for the drivers and
the motoring public in their respective jurisdictions, they don’t spell the end
of such punitive practices by law enforcement elsewhere. What they do provide,
however, is the legal argument to provide others with a path to victory in
future legal challenges.

Here’s hoping state and local lawmakers take notice, and amend their
laws to prevent infringing on free expression.

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